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W&L Law Professor Ben Spencer Logs another Fourth Circuit Victory

On September 6, the U.S. Court of Appeals for the Fourth Circuit handed Washington and Lee law professor A. Benjamin Spencer his latest victory when it issued an opinion in the case of United States v. Hicks. Spencer handled the case for the government in his capacity as a Special Assistant U.S. Attorney, a position to which he was appointed in 2009 and holds as a pro bono public service.

The jury acquitted on thirteen of the fourteen counts – including conspiracy – but hung as to the first count, which was the underlying crime of health care fraud. Hicks was subsequently retried on the first count, convicted, and sentenced to 27 months of imprisonment. She argued her conviction violated the double jeopardy clause of the U.S. Constitution.

"To evaluate a double jeopardy claim, the court engages in a criminal collateral estoppel analysis, seeking to identify whether the issue tried in the second case is identical to issues that the jury actually determined and necessarily decided in a prior case," says Spencer.

On behalf of the government, Spencer argued that an acquittal on conspiracy to commit health care fraud did not preclude a retrial on the underlying charge of health care fraud because a conspiracy conviction requires an agreement and acts in furtherance of the conspiracy, findings that are not elements of proving a health care fraud charge. Further, although Hicks was acquitted of several wire fraud and false reporting charges for specific instances of alleged submission of fraudulent billings, Spencer argued that the government adduced evidence of other incidents of misconduct that could serve as the foundation for the health care fraud conviction.

The Fourth Circuit sided with Spencer, holding that "it is axiomatic that conspiracy and the substantive crime that underlie it are not identical and do not share the same elements" and thus a conspiracy acquittal did not necessarily preclude a retrial for health care fraud. The court also agreed that the government had sufficiently alleged and proven at trial that there were other incidents of fraudulent conduct by Hicks besides the specific actions underlying the wire fraud and false reporting charges of which she was acquitted.

"This decision is a victory for taxpayers, who do not deserve to be bilked of funds that have been set aside for those who truly need ambulance assistance," says Spencer. "I hope that this conviction and the prison sentence that Hicks will serve sends a message that defrauding taxpayers out of their money does not pay."

Spencer has won two previous appeals in the Fourth Circuit on behalf of the government, in United States v. Stewart and United States v. Burns.